Tokoniyaroi v The State [2002] FJHC 149; HAA0064.2002S (19 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0064 OF 2002
{ Suva Magistrate’s Court Crim. Case No.: 1062 of 2002 }

BETWEEN:

PITA TOKONIYAROI
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant - In Person
Respondent - Mr. D Prasad

JUDGMENT

On 13^th May 2002 the appellant was convicted on his plea of guilty for the offence of THEFT FROM PERSON Contrary to Section 271 of the Penal Code Act 17.

Particulars of Offence

PITA TOKONIYAROI, on the 10^th day of May, 2002 at Samabula in the Central Division, stole one lady’s bag valued $30.00, one black purse valued $6.00 and cash $145.00 to the total value of $181.00 from the person of MALTI DEVI d/o Kaur Prasad.

The facts were that the complainant is aged thirty-three years, a machinist. She was returning home after shopping at Raiwaqa. At Namena Road, the appellant followed her and grabbed her bag and ran. Time was about 7.00 p.m. A passerby in a taxi noticed this. He stopped the taxi, gave chase and caught the appellant with all the items.

The appellant admitted the facts and was sentenced to three years imprisonment. He is appealing against his sentence on grounds it is excessive. He said that all the items were recovered and he was kept in custody by the police for 60 hours. Even through in his grounds of appeal he says he is the sole breadwinner of the family, at the hearing he said he is unemployed and lives with his parents. The State is opposing the appeal and submitted that the sentence is proper. Counsel for the state referred this Court to PONIASI SAULEKALEKA v. THE STATE – Criminal Appeal 50 of 2001 where the appellant had pleaded guilty to pickpocketing a tourist, and items were recovered, a sentence of two years imprisonment was reduced to ten months.

In ROHEN KUMAR PERERA 1984 Crim. App. Report (S) the offender was sentenced to two years imprisonment for pickpocketing. The sentence was upheld.

In the present case the appellant was on bail pending trial for murder in Lautoka High Court at the time of commission of this offence. However, that is not a factor to be taken into consideration in sentencing here. It may be a good ground for revoking bail but that is for Lautoka Court to consider. The appellant has five previous convictions including one for Larceny from person, one for burglary and one for theft from dwelling house. The offence was committed at 7.00 p.m. when it is dark and on a woman who was alone. The appellant appeared to follow her for a while.

In his sentencing remarks the learned Magistrate referred to his guilty plea. However, he also went on to refer to one-third remission of sentence by prison authorities. Remission is not a relevant factor to be taken into account in sentencing because it is an administrative decision whether to grant remission or not. Remission is not automatic; it has to be earned by good conduct. In JOSUA KANIA v. THE STATE – Criminal Appeal 63 of 2002 this issue of remission as a factor in sentencing has been discussed at length. It is wrong in principle to increase a sentence in anticipation of remission. So some adjustment to sentence is necessary.

This was a fairly serious offence of theft from a helpless woman at night. The appellant has three previous convictions for dishonesty. After considering all the factors, I consider a sentence of eighteen months imprisonment is just. The appeal is successful. The appellant’s sentence is reduced to eighteen months imprisonment with effect from 13^th May 2002.

{ Jiten Singh }
JUDGE

At Suva
19^th August 2002